Citation Nr: 1311217 Decision Date: 04/04/13 Archive Date: 04/19/13 DOCKET NO. 09-45 747 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to a compensable evaluation for sinusitis. 2. Entitlement to service connection for low back disorder. 3. Entitlement to service connection for neck disorder. 4. Entitlement to service connection for right shoulder disorder. 5. Entitlement to service connection for left shoulder disorder. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Stephanie L. Caucutt, Counsel INTRODUCTION The Veteran served on active duty from April 1973 to September 1995. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2008 rating determination of a Regional Office (RO) of the Department of Veterans Affairs (VA) in Columbia, South Carolina. It is noted that the Veteran's service connection claims were all previously denied by a final rating action of the RO. The RO has reopened all of those matters and considered them on the merits. The Board agrees that this provides the Veteran with the greatest possible review. Hence, the Board has characterized these issues on appeal as set forth on the title page. In June 2011, the Board remanded the issues on appeal to the RO, via the Appeals Management Center (AMC), for additional development, including clarification as to whether the Veteran desired a hearing before a member of the Board. The AMC returned this appeal to the Board for further appellate review in November 2012. In February 2013, correspondence was received from the Veteran that he no longer desired a hearing. Thus, no outstanding hearing request remains. The Board's disposition of the matter of an increased rating for sinusitis is set forth below. The remaining issues are addressed in the REMAND portion of the decision and are once again REMANDED to the RO via the AMC, in Washington, DC. As a final preliminary matter, the Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the Veteran's claims. This Virtual VA claims file has been reviewed. FINDING OF FACT The Veteran's sinusitis is not characterized by at least one or two incapacitating episodes per year of sinusitis requiring prolonged antibiotic treatment, or; three to six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting; there is no indication of any surgery for sinusitis. CONCLUSION OF LAW The criteria for a compensable evaluation for sinusitis have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102 and 4.97, Diagnostic Code 6513. REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The Board notes the enactment of the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, and 5107 (West 2002 & Supp. 2012). To implement the provisions of the law, VA promulgated regulations codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The VCAA and its implementing regulations include, upon the submission of a substantially complete application for benefits, an enhanced duty on the part of VA to notify a claimant of the information and evidence needed to substantiate a claim, as well as the duty to notify the claimant of what evidence will be obtained by whom. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In addition, they define the obligation of VA with respect to its duty to assist a claimant in obtaining evidence. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). In this case, in a February 2008 pre-rating and September 2008 post-rating letter, the Veteran was provided notice regarding what information and evidence is needed to substantiate his claim for increased evaluation of sinusitis, as well as what information and evidence must be submitted by the Veteran and what information and evidence will be obtained by VA. These letters also advised the Veteran of how disability evaluations and effective dates are assigned, and the type of evidence which impacts those determinations. These claims were most recently adjudicated in a September 2012 supplemental statement of the case. VA has also fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate a claim, including outstanding treatment records, and as warranted by law, affording VA examinations that resulted in reports containing sufficient evidence by which to evaluate the Veteran's sinusitis. In sum, the appellant was provided the opportunity to meaningfully participate in the adjudication of his claim and did in fact participate. See Washington v. Nicholson, 21 Vet. App. 191 (2007). Merits of the Claim In reaching this determination, the Board has reviewed all the evidence in the Veteran's claims file, including Virtual VA records. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the Veteran's claim, and what the evidence in the claims file shows, or fails to show, with respect to that claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (rating schedule), found in 38 C.F.R. Part 4. Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder. 38 U.S.C.A. § 1155. Evaluation of a service-connected disorder requires a review of the Veteran's entire medical history regarding that disorder. 38 C.F.R. §§ 4.1, 4.2 (2012); Schafrath v. Derwinski, 1 Vet. App. 589 (1991). When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3 (2012). If there is a question as to which evaluation to apply, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2012). Staged initial ratings may be assigned where there is a change in the status of a disability during the evaluation period. See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Historically, service connection was awarded for sinusitis by RO rating decision dated in May 1996. An initial, noncompensable (i.e., 0 percent) evaluation was assigned effective October 1, 1995 pursuant to Diagnostic Code 6513. In December 2007, the Veteran filed a claim for increased evaluation of service-connected sinusitis. Diagnostic Code 6513 pertains to chronic, maxillary sinusitis and is rated according to the General Rating Formula for Sinusitis (General Rating Formula). Under the General Rating Formula, a noncompensable evaluation is warranted for sinusitis detected by X-ray only. A 10 percent evaluation is warranted for one or two incapacitating episodes per year of sinusitis requiring prolonged (lasting four to six weeks) antibiotic treatment, or three to six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting. A 30 percent evaluation is warranted for three or more incapacitating episodes per year of sinusitis requiring prolonged (lasting four to six weeks) antibiotic treatment, or more than six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting. Finally, a 50 percent evaluation is warranted for chronic sinusitis following radical surgery with chronic osteomyelitis, or; near constant sinusitis characterized by headaches, pain and tenderness of the affected sinus, and purulent discharge or crusting after repeated surgeries. 38 C.F.R. § 4.97, Diagnostic Code 6513 (2012). An incapacitating episode of sinusitis means one that requires bed rest and treatment by a physician. See id. at Note. In this case, a report of VA examination dated in February 2008 reflects a report of daily symptoms including headaches, sinus pain, and sinus pressure. The Veteran denied any treatment with antibiotics, but reported using Afrin for relief of nasal symptoms. Examination revealed no objective evidence of any tenderness or swelling over the frontal or maxillary sinuses and no inflammation of the nasal mucosa. VA treatment reports show the Veteran complained of chronic postnasal drainage in February 2008 which caused persistent coughing. The assessment was nasal congestion; a steroid nasal spray was prescribed. Thereafter, in April 2008, the Veteran was evaluated at the VA otolaryngology (ENT) clinic. He complained of longstanding hoarseness; it was also noted that he had just started using a nasal steroid for congestion. Examination revealed objective evidence of red and boggy mucosa. The assessment was hoarseness. The Veteran returned to the ENT clinic in July 2008. At such time, he continued to report hoarseness since service; histories of gastroesophageal reflux disease (GERD) and obstructive sleep apnea (OSA) were also noted. Clinical evaluation demonstrated mild septal deviation and mild to moderate turbinate hypertrophy. The impression was allergic versus nonallergic rhinitis, inadequately controlled; GERD; and OSA. A different steroid nasal spray was prescribed. In March 2009, the Veteran sought treatment by his primary care physician for neck and back pain. He also noted that he was continuing to experience sinus drainage. The assessment was chronic rhinitis and hoarseness. The Veteran was referred to the ENT clinic and, in April 2009, he reported sinus drainage, especially in the morning, despite the use of oral and nasal allergy medications. Examination of the nasal passages was clear with slightly edematous mucosa; clinical assessment included allergic versus nonallergic rhinitis. A July 2009 follow up treatment report reflects complaints of productive cough and intermittent dysphagia, as well as post nasal drip in the evening. The assessment was severe refractory GERD/laryngopharyngeal reflux disease. The Veteran was again evaluated by VA in October 2011 at which time he reported episodes of sinusitis characterized by sinus pain/pressure, headaches, and nasal discharge. He indicated that such episodes were not incapacitating and had not required treatment with antibiotics. According to the Veteran, these non-incapacitating episodes occurred at least every other month; he had experienced more than seven (7) in the past year. When asked about the effect of his sinusitis on his occupational functioning, the Veteran responded that he had missed approximately three months of work over the past year due to sinusitis. The examiner's assessment was chronic sinusitis, chronic laryngitis, and rhinnorhea. Based on the Veteran's lay statements at the February 2008 and October 2011 VA examinations, it appears that, at a minimum, a compensable rating may be warranted for service-connected sinusitis. In that regard, the Veteran reported symptoms consistent with an incapacitating episode which occurred at least three to six times per year. See 38 C.F.R. § 4.97, Diagnostic Code 6513. However, while the Veteran is competent to report such symptoms, see Layno v. Brown, 6 Vet. App. 465, 469 (1994), these statements remain subject to an analysis regarding their credibility and probative value. See Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992). In this case, for reasons discussed below, the Board finds the Veteran's history of sinusitis symptoms, to include evidence regarding the frequency of non-incapacitating episodes and the effects of his disability on his occupational functioning, not credible. The Board notes that it must analyze the credibility and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir.1996) (table); Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno, 6 Vet. App. at 469; see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). Here, the Board finds the lack of any mention of sinusitis-related symptoms in the Veteran's treatment reports weighs heavily against the credibility of his assertions that he has, in fact, experienced these symptoms throughout this appeal. As discussed above, VA treatment reports show continued complaints, treatment, and evaluation of hoarseness and nasal congestion associated with laryngitis and rhinitis, respectively. There is no mention in any of the treatment reports, however, of any sinus episodes/attacks, headaches, and/or sinus pain or pressure. In fact, the contemporaneous evidence of record is silent for any comment on his service-connected sinusitis, including any impact on his occupational functioning. The Board further notes that it is especially probative that the Veteran was seen by ENT specialists on multiple occasions throughout this appeal, but failed to report any of these symptoms or episodes/attacks. In assessing the probative value of the Veteran's statements, the Board is inclined to find the statements presented in connection with treatment to be more credible as there is no indication that the Veteran had any reason to not provide an accurate medical history to the evaluating physician. See White v. Illinois, 502 U.S. 346, 355-56 (1991) (noting that statements made for the purpose of medical diagnosis or treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive a proper diagnosis or treatment). Conversely, his statements to the February 2008 and October 2011 VA examiners were made in connection with a claim for increased evaluation. See Caluza v. Brown, 7 Vet. App. 498 (1995); see also Macarubbo v. Gober, 10 Vet. App. 388 (1997) (holding that the credibility of lay evidence can be affected and even impeached by inconsistent statements, internal inconsistency of statements, inconsistency with other evidence of record, facial implausibility, bad character, interest, bias, self-interest, malingering, desire for monetary gain, and witness demeanor). In view of the foregoing, the Board finds the Veteran's statements regarding non-incapacitating episodes of sinusitis involving sinus pain/pressure, headaches, and discharge or crusting are not credible. See, e.g. Madden v. Gober, 125 F.3d 1477, 1481 (1997) (the Board is entitled to discount the credibility of evidence in light of its own inherent characteristics and its relationship to other items of evidence); Pond v. West, 12 Vet. App. 341 (1999) (although Board must take into consideration a Veteran's statements, it may consider whether self-interest may be a factor in making such statements). In light of the absence of any incapacitating or non-incapacitating episodes of sinusitis, symptoms such as headaches, pain, purulent discharge and crusting, or sinus surgeries, the Board finds that the symptoms of the Veteran's service-connected sinusitis most closely approximate the criteria for a noncompensable rating under Diagnostic Code 6513 during this appeal. In reaching this determination, the Board has given due consideration to the holding of the United States Court of Appeals for Veterans Claims (Court) in Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007), addressing whether 'staged' ratings may be appropriate for distinct periods of time based on the facts found. However, in the case at hand, it would appear that, over the course of the current appeal, symptomatology attributable to the Veteran's sinusitis has been consistent and appropriately rated. Moreover, based on a review of the entire evidence of record, the Board is of the opinion that the disability picture presented by the Veteran's service-connected sinusitis is appropriately contemplated by the rating schedule. In that regard, for reasons similar to those previously discussed, the Board finds the Veteran's statement that he has missed three months of work due to sinusitis wholly incredible given that there is absolutely no mention of sinusitis-related problems in the contemporaneous record. Accordingly, referral for consideration of an extraschedular evaluation is not warranted. See Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). In short, the evidence of record does not demonstrate that the Veteran's sinusitis has met the criteria for a compensable evaluation at any time pertinent to this appeal and his claim must therefore be denied. In reaching this conclusion, the benefit of the doubt doctrine was considered. However, as a preponderance of the evidence is against this claim this doctrine is not for application. See 38 U.S.C.A. § 5107 (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). (CONTINUED ON NEXT PAGE) ORDER Entitlement to a compensable evaluation for sinusitis is denied. REMAND The Board sincerely regrets further delay to the remaining claims on appeal. However, review of the record reveals that further action on these matters is warranted. At the outset, the Board notes that it previously remanded the service connection claims on appeal, in part, so that the Agency of Original Jurisdiction (AOJ) could consider, in the first instance, additional evidence submitted by the Veteran in January 2010. Such evidence consisted of additional lay statements by the Veteran regarding his in-service neck, back, and shoulder complaints; it also included photographs of the aircraft he worked with in service, including an image of the back bay door that injured him in July 1975. As this evidence was received prior to the AOJ transferring the Veteran's appeal to the Board, remand was required. See 38 C.F.R. § 19.37 (2012). Review of the claims file reflects that the AMC readjudicated the service connection claims in September 2012. Pertinent to the reasons for this remand, the supplemental statement of the case (SSOC) does not reflect consideration of the aforementioned evidence. Under these circumstances, the Board has no alternative but to once again remand this appeal for the RO/AMC to adjudicate the Veteran's service connection claims in light of this additional evidence, in the first instance, and for issuance of a rating decision and/or an SSOC reflecting such consideration. See 38 C.F.R. §§ 19.31, 19.37 (2012). See also Stegall v. West, 11 Vet. App. 268 (1998) (a remand confers on the claimant, as a matter of law, the right to compliance with the remand order). In addition to the foregoing, the Board's review of the claims file reveals additional VA examination and opinion is necessary with regard to the Veteran's claims. The record reflects that he underwent VA examination in February 2009 for the specific purpose of investigating the nature and etiology of his claimed neck, back, and shoulder disorders. Following a history, examination, and review of the claims file, the examiner determined the Veteran's current neck and shoulder disorders are less likely than not related to his in-service complaints based solely on the fact that there is no evidence of complaints between 1988 and 2009. Similarly, the examiner concluded that his current lumbar disorder is less likely than not related to his in-service complaints based solely on the fact that there is no evidence of complaints between 1995 and 2009. The Board observes that the opinions expressed in the May 2009 addendum report did not appear to take into account the Veteran's multiple lay statements of record that he has experienced low back, neck, and shoulder symptoms since service. Further, the Board notes there is, in fact, both medical and lay evidence dated since service, but prior to the 2009 VA examination, which reflects low back, neck, and shoulder complaints (i.e., November 1995 VA examination reports and VA treatment reports dated in 2008). Thus, in light of recent holdings by the United States Court of Appeals for Veterans Claims, the Board finds the February 2009 VA examination and May 2009 addendum report inadequate for service connection purposes because the report fails to include consideration of relevant, competent evidence. Cf. Monzingo v. Shinseki, 26 Vet. App. 97, 105 (2012). To ensure that the record before the examiner is complete, the Board finds that recent VA treatment records should be obtained from any appropriate facility, including the Charleston VA Medical Center (VAMC) prior to any examination. See 38 C.F.R. § 3.159(c)(2); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992) (VA records are considered part of the record on appeal since they are within VA's constructive possession.). The RO/AMC should also contact the Veteran for information regarding any treatment for his claimed back, neck, and shoulder disorders for the period between September 1995 and February 2008. Based on the Veteran's response, reasonable efforts should be made to obtain any outstanding treatment records. Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran to request information regarding any treatment for his claimed back, neck, and shoulder disorders for the period between September 1995 and February 2008. Based on the Veteran's response to the above request, the RO/AMC should make reasonable efforts to obtain any outstanding treatment records. All records obtained should be associated with the claims file. If the RO/AMC cannot obtain any records requested herein, it must: (a) notify the claimant of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claim. The claimant must then be given an opportunity to respond. 2. Obtain from the Charleston VAMC all outstanding, pertinent records of evaluation and/or treatment of the Veteran since August 12, 2012. All records and/or responses received should be associated with the claims file. If the RO/AMC cannot locate any Federal records requested herein, it must specifically document the attempts that were made to locate them, and explain in writing why further attempts to locate or obtain any government records would be futile. The RO/AMC must then: (a) notify the claimant of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claim. The claimant must then be given an opportunity to respond. 3. Following receipt of any outstanding treatment records, arrange for the Veteran to undergo an appropriate VA examination for the purpose of determining the nature and etiology of any current low back, neck, and shoulder disorders. Access to the claims file and Virtual VA must be made available to the examiner for review, if needed. Any indicated diagnostic tests and studies must be accomplished. The examiner is asked to identify all current low back, neck, and shoulder disorders, including those diagnosed at the February 2009 VA examination. Then, for each diagnosed disorder, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that such disorder had its onset during the Veteran's twenty-two year period of active military service or is otherwise related to such service. In providing the requested opinions, the examiner should consider all medical and lay evidence, including the multiple service treatment reports documenting injury and treatment of neck, back, and shoulder complaints/strain and the Veteran's own lay statements regarding symptoms since service. A complete medical rationale for all opinions expressed must be provided. 4. After the development requested has been completed, the RO should review the examination report(s) to ensure that it is in complete compliance with the directives of this REMAND. The RO must ensure that each examiner documented his or her consideration of Virtual VA. If any report is deficient in any manner, the RO must implement corrective procedures at once. 5. The Veteran is hereby notified that it is his responsibility to report for the examination(s) and to cooperate in the development of his claims. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2012). In the event that the Veteran does not report for any aforementioned examination(s), documentation should be obtained which shows that notice scheduling the examination was sent to the last known address. It should also be indicated whether any notice that was sent was returned as undeliverable. 6. Upon completion of the above requested development and any additional development deemed appropriate, the RO/AMC is to readjudicate the issues remaining on appeal. All applicable laws, regulations, and theories of entitlement should also be considered, as well as any evidence received since the September 2012 supplemental statement of the case. The RO/AMC should also ensure that any adjudication includes review and consideration of the Veteran's statement and photographs submitted in January 2010. If any benefit sought on appeal remains denied, the appellant and his representative, if any, should be provided with a supplemental statement of the case. An appropriate period of time should be allowed for response. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs